2020 Ohio 3199
Ohio Ct. App.2020Background
- Brandon Davis was re-indicted for aggravated burglary (R.C. 2911.11(A)(2)), burglary (R.C. 2911.12(A)(2)), and two one-year firearm specifications after a prior guilty plea to burglary was vacated on appeal.
- Homeowners Kimberly and Rill Thompson left for about an hour; on return they saw Davis and an accomplice (Eggers) outside their driveway with property from the house, including a light-blue pillowcase containing jewelry.
- The Thompsons found their kitchen window screen knocked out, a moved chair, an unlocked back door, a TV staged for removal, firearms missing from a gun cabinet, and ammunition in a trash can; six operable firearms were recovered in a pack‑n‑play bag.
- Law enforcement stopped the getaway vehicle (a silver Chevy HHR) and found burglary tools (crowbar, screwdriver, gloves, shirt) inside; Davis was tried by jury and convicted of aggravated burglary, burglary, and both firearm specifications.
- Trial court merged offenses and sentenced Davis on aggravated burglary (11 years) plus one year for the firearm specification (total 12 years); on appeal the Second District vacated the aggravated burglary conviction and its firearm specification, affirmed the burglary conviction and firearm specification, and remanded for sentencing on burglary with the firearm specification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated burglary (R.C. 2911.11(A)(2)) | State: evidence shows Davis trespassed an occupied structure, stole firearms, and was in possession of them during the offense. | Davis: State failed to prove "another person other than an accomplice was present" during the trespass. | Vacated aggravated burglary conviction and its firearm specification for insufficient evidence because no one else was present during the trespass into the occupied structure. |
| Sufficiency and manifest weight for burglary (R.C. 2911.12(A)(2)) | State: dwelling was regularly inhabited and occupants were temporarily absent (thus "present or likely to be present"); evidence supports trespass by force with intent to commit theft. | Davis: (general denial) argued insufficiency as to elements and firearm possession timing. | Affirmed burglary conviction: sufficient evidence that Thompsons were "likely to be present" and Davis trespassed with intent to steal; verdict not against manifest weight. |
| Sufficiency of firearm specification (R.C. 2941.141(A)) | State: Davis possessed six operable firearms and matching ammunition taken during the burglary; firearm need not be possessed before start of offense. | Davis: firearms were acquired during burglary and thus may not support specification. | Affirmed firearm specification attached to burglary: following Powell, a defendant may be subject to specification if firearm was possessed or under control at any point during the offense. |
| Pretrial challenge to indictment language for aggravated burglary | State: defective wording ("present or likely to be present") was harmless; indictment still valid. | Davis: indictment incorrectly tracked statute (aggravated burglary requires "present," not "present or likely to be present") and should be dismissed. | Issue rendered moot by vacatur of aggravated burglary conviction for insufficient evidence; first assignment overruled as moot. |
Key Cases Cited
- State v. Powell, 59 Ohio St.3d 62 (1991) (aggravated burglary continues while defendant remains in the structure; firearm acquired during burglary can satisfy firearm specification)
- State v. Clark, 107 Ohio App.3d 141 (1996) (defendant's trespass ends when he exits the house; aggravated burglary elements not met after exit)
- State v. Kilby, 50 Ohio St.2d 21 (1977) ("likely to be present" satisfied where permanent dwelling is regularly inhabited and occupants were temporarily absent)
- State v. Fowler, 4 Ohio St.3d 16 (1983) (same principle regarding "likely to be present" for dwellings)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (sets standard for manifest-weight review)
- State v. Murphy, 49 Ohio St.3d 206 (1990) (firearm specification requires proof firearm was operable or readily rendered operable)
- State v. Gaines, 46 Ohio St.3d 65 (1989) (discusses standards for firearm specification proof)